Occupiers of Erven 87 & 88 Berea v De Wet and Another ('Kiribilly')

eviction rescission - lack of consent - Johannesburg

SERI represents 184 residents of the Kiribilly block of flats (situated at Erven 87 and 88 in Berea, Johannesburg) in a rescission application against an eviction order granted by Justice Khumalo, purportedly by consent, on 10 September 2013.

The residents contend that the eviction order was wrongly granted, in that there was no consent. None of the residents could afford legal representation, and because none who were able to attend court could communicate effectively in English, the residents were represented in court by a member of the City of Johannesburg’s Ward Committee for the inner city area, who was neither an admitted advocate nor an attorney. Instead of obtaining a postponement, he agreed to the residents' eviction, without any authority or mandate to do so.

The Judge in the High Court did not undertake any of the inquiries required by the PIE Act or by the applicable Practice Manual. In particular, she did not ensure that the residents had actually consented to the eviction order, and that their consent was real and informed. Further, she did not satisfy herself that the residents’ eviction would not render them homeless; call for any information relating to the needs of the elderly, disabled persons, children or households headed by women; call for a report from the City on the possible effect of the eviction order on the residents; or adopt the “proactive” approach that should be taken in the exercise of the equitable discretion conferred by section 4 of the PIE Act.

The application for recission was dismissed in the High Court on 12 November 2015.

On 4 February 2016, Justice Mphahlehle handed down judgment preventing the owner of the Kribilly block of flats from evicting the residents until they had an opportunity to appeal against their eviction order. The order allows the occupiers an opportunity to challenge the eviction order.

SERI's application for leave to appeal the judgment was denied by the High Court on 5 February 2016 and later by the Supreme Court of Appeal. SERI was granted leave to appeal by the Constitutional Court, however, and the matter was argued on 14 February 2017.

On 8 June 2017 the Constitutional Court set aside the eviction. The judgment held that evictions that lead to homelessness are unlawful, even if they are agreed to by all of the residents who stand to be evicted. Further, judges must make sure that people under threat of eviction are properly informed of their rights to contest eviction proceedings and claim alternative accommodation. In addition, judges must proactively investigate the circumstances of all residents in order to properly assess the impact that an eviction will have on their lives and living circumstances.